Trade Practices Commission v Allied Mills Industies Pty Ltd & Ors [1980] FCA 59

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. G. No.29 of 1979 GENERAL DIVISION

In the matter of - THE TRADE PRACTICES ACT 1974 Between TRADE PRACTICES COMMISSION Applicant

and

ALLIED MILLS INDUSTRIES PTY. LIMITED and OTHERS

Respondents

Im y i9go

CORAM: SHEPPARD, J.

REASONS FOR JUDGMENT

The respondents in this matter, which was commenced by application filed on lst August, 1979, seek the production of a number of documents said by the applicant to be relevant to the issues to be determined but privileged from inspection by the respondents upon grounds stated in affidavits to which I shall in a moment refer. The applicant is not entitled to discovery from the respondents because the action is an action for penalties; The King v. The Associated Northern Colleries 11 C.L.R. 738 at pp.741-748. I raised with counsel the

question of whether in those circumstances there was any basis

for saying that the respondents were not entitled to discovery from the applicant. Counsel for the applicant said that he conceded that the respondents were entitled

to discovery with the result that the provisions of Order 15 of the rules applied.

The proceedings are proceedings instituted pursuant to ss.77 and 80 of the Act. In those circumstances the provisions of s.157 are applicable. It has occurred to me that the provisions of that section may be such as to limit the discovery which the applicant may otherwise have been obliged to make. No submission to this effect was made and I have put that matter aside.

Although the respondents are not obliged to give dis- covery, they are bound by the provisions of s.155 of the Trade Practices Act 1974, which provides that where the Commission has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes or may constitute a contravention of the Act, it may, by notice in writing served on that person, require that person to furnish information, produce documents or give evidence. A number of such notices have been served, In consequence a number of documents have been produced to the applicant and a number of other documents have come into existence as the result of interviews which officers of the applicant have had with various people. These documents comprise statements, notes of interview and in at least one case formal evidence taken